Whether the land of a mushroom cultivator constitutes farmland subject to compensation for farming loss under Article 48(1) of the Enforcement Rule of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (negative)

Article 7(2) and (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8852 of Feb. 29, 2008); Article 48(1) of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Ordinance of the Ministry of Construction and Transportation No. 4 of Mar. 14, 2008); Article 2 subparag. 1(a) and (b) of the Farmland Act; Article 2(3) of the Enforcement Decree of the Farmland Act

Plaintiff

Korea Highway Corporation (Attorney Kim Shin-hwan, Counsel for defendant)

Seoul High Court Decision 2010Nu14581 decided April 29, 2011

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. After accepting the judgment of the court of first instance, the court below acknowledged the facts as stated in its holding. Since the plaintiff cultivated mushroom directly within the facilities on the instant land as a farmer, it shall be deemed that the instant land is farmland under the Farmland Act from the perspective of the actual use status, and even if the plaintiff can continue the same type of farming by relocating the place, it cannot be readily concluded that he can produce mushroom immediately on the ground that the removal of the facilities and installation of the facilities take considerable time and the facilities have been equipped. The issue of whether the compensation for agricultural losses (hereinafter referred to as "agricultural losses") is subject to the compensation should not be considered as a possibility of transplantation, but as a basis for the compensation. In light of the following, the court below determined that the defendant should compensate the plaintiff for farming losses, which became unable to cultivate and sell mushroom in the instant land which is farmland, due to the implementation

2. However, we cannot agree with the judgment of the court below for the following reasons.

Article 77 of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8852, Feb. 29, 2008; hereinafter “Public Works Act”) provides for compensation for business losses, farming losses, etc. The main text of Article 77(2) provides that “any actual farmer shall be compensated by considering income, etc. per unit area of farmland with respect to agricultural losses,” and Article 77(4) provides that “The matters concerning the detailed calculation and assessment method of compensation under the provisions of paragraphs (1) through (3) and the criteria for compensation, and the standards for recognition of actual farmer under the provisions of paragraph (2) shall be prescribed by the Ordinance of the Ministry of Construction and Transportation.” According to such delegation, Article 48 of the former Enforcement Rule of the Public Works Act (amended by Ordinance of the Ministry of Construction and Transportation No. 4, Mar. 14, 2008) that provides for compensation for agricultural losses shall be “any farmland subject to the compensation for agricultural losses falling under Article 2 subparag. 1(a) of the Farmland Act”.

Meanwhile, Article 2 subparag. 1 of the Farmland Act provides that “farmland” refers to any of the following land. Article 2 subparag. 1 of the same Act provides that “The land actually used as farmland for the cultivation of crops or for the growth of perennial plants regardless of its legal land category.” Article 2 subparag. 1(a) provides that “the land for the improvement of the land in item (a) and for the production facilities for agricultural production as prescribed by the Presidential Decree, which are installed on the land in item (a)” and Article 2 subparag. 1(b) of the Enforcement Decree of the Farmland Act provides that “any of the facilities prescribed by the Presidential Decree” under subparagraph 1(a) of Article 2 of the Act refers to a fixed greenhouse, mushroom growing shed, and greenhouse and its accessory facilities installed on the land in subparagraph 1(a) of Article 2 of the Act. As such, the farmland in the Farmland Act provides that “the land in subparagraph 1(a) of Article 2 subparag. 1(b) and the land in subparagraph 2(b) of the Enforcement Decree of the Farmland Act shall be included in the farmland and the land.

Nevertheless, inasmuch as the lower court determined otherwise, that the instant land, which is the land for a mushroom cultivator’s land managed by the Plaintiff, constitutes farmland subject to compensation for agricultural loss as prescribed by Article 48(1) of the former Enforcement Rule of the Public Works Act, the lower court erred by misapprehending the legal doctrine on “farmland” subject to compensation for agricultural loss, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit, and the Supreme Court Decision 2010Du18413 Decided June 14, 2012 differs from the instant case, and thus, is inappropriate to be invoked in the instant case.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Kim Shin (Presiding Justice)